Strategic Litigation as an Answer to Preventing Internet Shutdowns?

By Kuda Hove |
Zimbabwean lawyer and activist Kuda Hove reflects on a workshop he attended on strategic digital rights litigation hosted by the Berkman Klein Center for Internet & Society at Harvard University and Media Legal Defence Initiative as well as on various discussions from the  recently concluded Forum on Internet Freedom in Africa.
The Forum on Internet Freedom in Africa 2017 (FIFAfrica17) was a great platform to learn more about the issues plaguing the African Internet space. The event was also a  platform to interact with some of Africa’s sharpest Internet activists and explore opportunities for collaborative interventions for advancing internet freedom on the continent.
From the Strategic Digital Rights Litigation training workshop, I learned how litigation can serve as a tool to promote and protect online rights in various African jurisdictions. It was also in this workshop that I learnt about the role of African Regional Courts in internet and information rights related matters which are referred to them by African nationals, as evinced by the case of Lohé Issa Konaté v. The Republic of Burkina Faso in which the right to freedom of expression and freedom of the press were upheld.
I come from Zimbabwe where referral of cases to regional courts such as the African Court of Human and Peoples’ Rights is rare. In the past, Zimbabweans have successfully referred a land matter to the Southern Africa Development Community (SADC) Tribunal. However, the government of Zimbabwe ignored the SADC Tribunal ruling and pushed for changes to be made to the SADC Tribunal. As a result, it is no longer possible for private SADC citizens to directly report State sponsored human rights violations to the SADC Tribunal. It was therefore, interesting to interact with session facilitators and participants who were conversant in the procedure involved in approaching other African regional and supranational courts.
The various discussions on Internet shutdowns in Africa were of interest to me especially when the Forum’s keynote speaker Rebecca Enonchong, described her experience during Cameroon’s 93 day internet shutdown which took place between January and April 2017. She said the deliberate shutdown of the Internet in English speaking parts of Cameroon led to a rise in “Internet refugees.” That is, individuals who travelled from parts of Cameroon without the Internet to other parts of the country where Internet was available for the purpose of accessing social media messages, emails and other Internet based communications.
The concept of Internet refugees reminded me of the experience of some of the rural populations in Zimbabwe. We might not have experienced internet shutdowns, but access to the Internet in areas outside of main cities and towns remains problematic, largely due to lack of infrastructure. Access to the Internet is still directly affected by factors such as access to electricity, sparsely populated cellphone towers, and lack of any substantial fixed line networks in rural areas. These infrastructure inadequacies contribute to the growth in the digital divide between urban and rural populations. Residents in rural areas are left with no choice, but to travel from their homes to the nearest clinic, growth point, or other business centre for the sole purpose of accessing mobile networks which allow them to communicate over the Internet. Given that rural women are seized with domestic roles, it is usually men who are able to travel to these areas with mobile network access, thus contributing to a gender divide when it comes to the use of ICT based communications in rural areas.
The panel discussion on the impact of Internet shutdowns raised a number of thought-provoking points and questions. For example, how do activists convince governments not to shut down the internet in their respective countries? Would an economic argument based on the negative economic impact Internet shutdowns have on national economies be effective? Or is it more effective to argue against Internet shutdowns from a human rights perspective which highlights the fact that the United Nations has recognised access to the Internet as a human right that must be protected? Despite both these arguments, the trend of internet shutdowns initiated by African governments continues to grow, which indicates that they do not care about economic loss resulting from Internet shutdowns, and the same governments have also shown a culture of impunity in respect for human rights.
I walked away from #FIFAfrica17 pondering how successful strategic litigation against an African government which has shut down the internet might be. In my mind, this would be an attention-grabbing test case which just might be a solution and deterrent to errant African governments. Such a case would be argued before a court such as the African Court of Human and Peoples Rights. The legal basis for this challenge would be that the government in question has violated its citizens’ fundamental rights such as the right to access to information, right to freedom of expression, and the right to freedom of assembly. These rights all enjoy protection under the African Charter on Human and People’s Rights and their violation is a violation of this continental instrument. Furthermore, private sector players can even act as amici curiae and provide proof of the economic prejudice they have suffered as a direct result of being cut off from the Internet. Time will tell whether such strategic litigation will prove effective in the fight against Internet shutdowns in Africa.

The Evolution of Internet Shutdowns in DR Congo

By Arsene Tungali |
In the past seven years, citizens in the Democratic Republic of Congo (DRC) have experienced a series of intentional interruptions to online communications, affecting the exercise of rights to freedom of expression and information as well as access to services.
The first shutdown of digital communications reported in DRC was in December 2011. The shutdown affected SMS, and lasted 25 days. At the time, few people appreciated the magnitude of this state-initiated act or knew how to respond to it.
The SMS shutdown came in the aftermath of the general elections but just before the announcement of the election results. One of the reasons cited by the government for blocking communication was to prevent the spread of fake results over the internet before the electoral commission announced official results. This SMS communications shutdown went largely unnoticed by the global community who had been captivated earlier in the year by the January 2011 Egyptian internet shutdown.
Three years later in January 2015, the Congolese government again ordered telecommunications companies to block access not only to SMS but also the internet. This shutdown came on the backdrop of protests against a proposed electoral bill. Whereas banks and government agencies were granted access to the internet four days after the shutdown, the general public did not regain access until after three weeks.
The most recent Internet shutdown in DRC occurred on December 19, 2016 – the day President Joseph Kabila was supposed to step down as head of state. There were a lot of planned protests across the country against the president’s stay in office beyond the two term limit, in response to which the government ordered telecom operators to block to social media sites as an attempt to thwart mobilising by protestors.
Recent statistics show that for a population of over 70 million, only 4% of the inhabitants are connected to the Internet due to limited infrastructure and high access costs. Nonetheless, those with access are exploiting various online tools for communication, discourse on governance and activism. According to the State of Internet Freedom in DRC 2016 report, political parties maintain WhatsApp groups for strategic planning of campaign rallies. Meanwhile, through trending hashtags on social media, activists and ordinary citizens create public awareness on issues such as arbitrary arrests and other human rights concerns.
Government actions such as shutdowns, alongside surveillance and censorship practices as documented in the 2016 report, undermine the development of inclusive internet society in the central African country.

“There should be more effort towards developing infrastructure, progressive legislations, private sector investment, local content in local languages and more trainings in digital rights and digital security.”  State of Internet Freedom in DRC 2016

As internet users have become more conscientious of their online rights, many activists and Internet users have turned to the use of Virtual Private Networks (VPN) to circumvent internet blockages. Many more are interested in taking digital security trainings, which explore topics like encryption, mitigating surveillance and tools for safe online communication.

“We knew nothing about VPNs until Internet was blocked in the DRC.” DRC Journalist

The trend of governments initiating internet shutdowns, not only in DRC, has attracted global condemnation. In many cases, these calls have gone unanswered by government officials and communication regulators, leading many to believe that this trend is likely to continue. In the spirit of the multi-stakeholder model of internet governance, other actors (not only government) should continue to play active roles to counter this practice or to support initiatives aimed at promoting more access and affordability in developing countries.

  1. Continued pressure on governments: Stakeholders should keep on applying pressure to those governments that shut down the internet. They should also increase awareness of the implication of a shutdown including the economic losses suffered at a national and micro level. However, this should be supplemented with more research on the economic impact of Internet shutdowns.
  2. The Autonomy of Service Providers: Telecommunications companies often receive orders from governments to block internet access. Clauses in their license agreements force them to comply when such orders are issued, failure of which could result in termination of licences. Nonetheless, telecom companies and ISPs should more actively release details of government information requests, takedown and shutdown notices in a bid to support the transparency of processes and accountability of oversight bodies.
  3. Civil society organisations and awareness: CSOs are among the most vocal groups condemning internet shutdowns in alliance with end-users, activists, journalists, and even private sector. They should also increase the number of trainings and capacity building programs on digital security and inform more people of their digital rights in order to be in a position to demand these rights.
  4. Development of Progressive Policy: In DRC there is a pressing need for new laws that cover the ICT sector. Apart from the constitution, there are only two legislations (the first on Telecommunications and the other establishing the Regulator) both from 2002. The existing legislative and policy framework need to be updated and reframed to provide more clarity on the role of all players in DR Congo’s ICT arena and to provide for online privacy and freedom of expression.